Might a right, but let's not bill the rest

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Australia may be closer to getting a bill of rights. The Federal
Government looks likely to begin a nationwide consultation process
this week, to coincide with the 60th anniversary of the Universal
Declaration of Human Rights at the United Nations.

Proposals for an Australian bill of rights are nothing new. On
and off for decades there have been attempts to incorporate rights
into the constitution or in comprehensive legislation, often
following lengthy inquiries and detailed reports. None has
succeeded.

Is anything new this time round?

As proponents like to remind us, all other comparable countries,
including Britain, New Zealand and Canada, have adopted a bill or
charter of rights. Two Australian jurisdictions, the ACT and
Victoria, have recently joined them.

Now the pressure is on for Australia to fall in line.

If it is to be so, the issue must be how to make a bill
compatible with Australian democracy. Australia's constitutional
democracy is built on representative government and the separation
of powers. In principle, the legislature makes the laws and the
courts enforce them.

A bill of rights changes this. Unelected courts gain the power
to frustrate elected governments if they hold a law to be in breach
of rights.

This may sound fine, even desirable. But many rights are in fact
political. They rest on controversial propositions, matters open to
reasonable disagreement, issues that should properly be debated in
the public arena.

We hear, for example, of the "right to die with dignity". This
is not a natural right, or a settled matter. It is deeply, and
essentially, contentious.

Another example: the Victorian Charter of Human Rights and
Responsibilities includes a provision giving a person of "a
particular cultural background" the "right, in community
with other persons of that background, to enjoy his or her
culture". To determine whether a person has a "particular"
background, and whether its enjoyment has been denied, requires
detailed knowledge of cultural practices and expectations, both in
"particular" and mainstream cultures.

These are sociological and historical issues, not questions for
the courts.

The socio-economic rights that are favoured by many have major
resource implications. Good health, education and housing are all
worthy goals, but they are costly. To turn these into legal rights
is to deprive governments of the power to make decisions about
available resources, budget priorities and future plans.

But not all rights are political. Legal process rights - the
rights that surround the arrest, charge, trial and detention of
persons suspected of having committed an offence - belong properly
to the judicial arm of government. They concern the judicial
process. They are essential protections against arbitrary power,
elements of the rule of law on which our constitutional democracy
also rests.

Questions about legislative encroachment on these rights are
appropriately answered in the courts. If the claims made by
proponents of a bill were confined to legal process rights, then
agreement might be secured among those who are otherwise
sceptical.

Leading advocates now accept that a proposed constitutional bill
of rights is unlikely to survive a referendum.

They propose, instead, a statutory bill, passed by parliament
and open to repeal or amendment.

The powers of the courts, they also suggest, should be limited
to making declarations of incompatibility between laws and rights,
and not extend to striking down such laws. This is the model
followed in the ACT and Victoria, and it is said to respect the
separation of powers, allowing the parliament to decide what to do
with "incompatible" laws.

These are many merits in such proposals. But there are concerns,
too.

Although a statutory bill is repealable in principle, the
experience in other countries is that such bills quickly become
"constitutionalised". The rights they include become fixed, and
difficult to adjust to changing circumstances.

Paradoxically, the very attempt to protect parliament by
empowering the courts to make "declarations" may itself prove
unconstitutional. The commonwealth constitution prevents the High
Court from giving advisory opinions. The court may only rule on
actual legal disputes.

This hurdle may prove fatal. It will require close attention by
the government.

If Australia is on the path to a bill of rights, let's have a
genuine consultation process. Let us ask ourselves which rights are
best protected by the courts, and why we believe Australia to be
deficient compared to other countries.

Let us also consider how advocates and opponents might find
common ground. Given the long history of failure, this may be the
decisive question.

Helen Irving is Associate Professor in the Faculty of Law at
the University of Sydney.

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